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Discussion: Charlatans: a "concrete" abstract danger?

Danger! Charlatans in circulation .

This time address an interesting and important aspect of the legal nature of the bill, the speech is a bit 'technical, but do not worry, I'm not a lawyer, and then talk to common man and the speech will spin smoothly. I'll try to explain why "techniques" for which the law proposed by this bill would have the credentials to exist in our legal system. In general, in fact, a law before it could be approved at the political level, it must pass a "suitability test" in legal terms. Must in other words, prove to be compatible with the criteria that govern the formation of laws. A law, for example, can not go against a principle established by the Constitution, in which case, do not even discussed in the parliament and were stranded already on the shelves of some Committee.

Turning to our case, that is a law that introduces a crime, one of the fundamental rules that it must respect is to protect a legal right already directly or indirectly recognized by the Constitution or, as the trends of modern property which, although not in some way already detectable in the constitutional text, at least not the incompatible with it. To clarify: it is useless to waste time writing a law that forbids her to wear red, because even if you collect ten million signatures, the law is already in the Constitution as waste paper, turn it as you like, you will not find a line from which we can deduce that wear red cause harm. This rule is known as the principle of offensiveness It can be a crime only if it is injured or if endangered a recognized legal interest. The first step, then, is to see what are the legal interests that this bill intends to protect and if they are covered by the Constitution. Reading the bill, it is quite clear that these assets are:

• health
• personal assets
• culture

There is no doubt that the goods are attributable to the Constitution, because they are already protected by existing laws. All right then? The Bill has what it takes parliamentarians to land in the classrooms? Not really. Our legal system, in fact, distinguishes two types of crime:

• damage offenses: crimes are those that go directly to affect a legal right. For example, physical assault or theft are crimes of damage because the goods directly harm the health and wealth
• offenses danger: they are those crimes that endanger the legal interests. For example, the crime of abandonment of a minor or incompetent, is a crime of danger. Indeed, to be charged, it is not necessary that the child unable or has suffered an actual loss resulting from the state of abandonment, but simply the act of putting them in a situation of abandoned hazardous. In this way, the legislature wants to punish those who merely "threatening" the legal right for the safety of personnel who can not fend for itself.

According to this distinction, there is no doubt that the Bill seeks to introduce a crime of danger . Indeed, taking for example the legal right of health, the message of a quack who promotes an ineffective cure for cancer, does not affect, in itself, the health of anyone and therefore can not speak of crimes of damage. E 'plausible however, that this propaganda can cause someone to trust him, thus endangering the health of the victim that being distracted from following successful treatment.

We ended? Well ... not really ... the world is a little more complex. In fact, for the second type of crime, there is still a subtle but important distinction. We have, in fact:

• offenses real danger: they are those for which the rule is, that there is crime, there has been a real threat to the legal asset. And 'the judge in each case, must determine whether or not there was an actual danger. For example, set fire to an object of our property is a crime only if the court finds that in this case we put at risk the safety of others (there were, for example, people or things in the immediate vicinity)
• offenses theoretical danger: they are those for which, so there is a crime, the court need not determine whether, in this case, someone really being any danger, it is sufficient, however, that the prohibited conduct is implemented by the standard. An example of a rule which introduces a theoretical danger of crime is the crime of riot. Any person involved in a fight, he is punished, period. It is not necessary demonstrates that the court, for example, that nearby there were other people who could get hurt because of the brawl.

What, then, the sense of the rules that introduce the theoretical danger of crime? It is, in practice, the offense is "preventive" and that the legislature establish a priori that certain behaviors, by their nature, are always a threat to a particular legal right, and should be punished as such, without the need for further investigations to determine in each case whether the threat was real or not. This assumption by the legislature, must therefore be based on assessments general and abstract, based on experience.

If you wish, then, to frame our further distinction in this bill, I think it takes the form of a standard crime of abstract danger . In fact, the bill punishes the mere dissemination of a message quack, regardless of whether the message was actually received by someone and regardless of the extent that someone has changed his behavior on the basis of the message (it does not matter, that is, if he has completely ignored, or whether he only thought to apply to the charlatan, or whether it has actually benefited from the practice of the charlatan and conceded an injury).

E 'at this point, then, that might start some trouble for the bill. It is not difficult to imagine, in fact, that the introduction of a crime of abstract danger presents a risk of being too "preventive" and then to outline how to conduct a crime which in itself is not dangerous, going to overly restrict the freedom of individuals . There is a danger that is, violating the principle of offensiveness. To prevent this degeneration, the doctrine of law and proposes alternative solutions in conflict with one another, there are, in fact, different schools of thought. One of the prevailing guidelines, said that a provision of the crime of abstract danger is acceptable only if at least one of the following two situations:

• there is no precise scientific rule (or that rule is too complex to be applied from time to time by the court ") to establish reasonable certainty whether a given behavior has caused a specific harm, but you still have strong indications that, in general, given that behavior is causing. Examples of rules of criminal danger of abstract, entitled on the basis of this hypothesis, are the laws prohibiting the crossing of certain thresholds of safety in the quantities of some substances classified as carcinogens or intensity of electromagnetic fields emitted from electronic devices. In these cases, there is no precise scientific rules to determine whether the substance X, Y, taken in quantity, cause cancer. However, we have statistics which show that in a population exposed to the substance X, cancer rates are higher than normal. Then the legislature, to protect public health, is entitled to introduce a rule that punishes any person placing the substance in food in excess of X to Y, without the need to determine whether that food has actually caused the cancer to someone.
• case of goods carried out only by legal offend serial . It 's the case, for example, laws that prohibit the disposal of industrial waste water into rivers and the sea. In this case, the protected legal good is the environment. In fact, a single industry (except in exceptional circumstances) is never able to pollute a whole river or the entire ocean in a meaningful way. Then, accused of environmental damage a factory that pours each year a quantity of substance X in the river, could be unfounded, because maybe it is known that the amount of substance is not toxic in any way. However, if the total amount of the substance spilled into the environment from all the factories of an entire nation, causing the damage is evident, then the legislature may legitimately punish the behavior of the individual (in itself harmless) under the harmfulness of this behavior when implemented on a serial scale.

Here we are (finally say ....) to the point: our bill, falling into one of these two cases? I think so (I had doubts ...?) But maybe I'm wrong. I'll tell you more about this: I think, to some extent, both are true! Let's look at individually.

The first hypothesis could be verified because, firstly, it is not possible to determine with certainty when and to what extent those who may have been damaged by listening to a charlatan that should cure his cancer with ricotta, but on the other hand, the record provides evidence that such practices eventually lead to the victims. One could argue that in reality is always the victim who chose to take such care, and that it was aware of the danger he ran. However, according to this principle, it is also illegal rule prohibiting the trafficking of drugs: it is not always the "addict" who decides to take drugs? In fact, the standard antispaccio wants to protect the health sanctioning a practice that a priori "threatening" the health, feel free to review who and when he died because of substance goner. In my opinion, peddling nonsense that endanger the health, it is molto diverso dallo spacciare eroina.

Per la seconda ipotesi , possiamo considerare come bene da tutelare quello della cultura. Il singolo messaggio di un ciarlatano certamente non è in grado di degradare il livello culturale di una intera società. Tuttavia, una diffusione massiccia e prolungata di messaggi scientificamente infondati, crea e alimenta una non-cultura dell'irrazionale che può radicarsi nella società, soprattutto negli strati meno preparati, andando a competere ed a scontrarsi con l'istruzione fornita dalla scuola e dall'università. Anche in questo caso, le prove degli effetti deleteri, si trovano nei fatti di cronaca.

In ultima analisi, (per return to the post title) I think we can say that the danger is abstract ... but the crime is very real.


We did it ... this time I have served up a nice block, but I think it was worth it because we have considered a crucial aspect of the bill and maybe we learned something ( I for one) on how the law works. What do you think?

conclude with the usual appeal: if some expert happen right here, you are warmly invited to have its say on the above.

For your next appointment, I will leave aside the technical issues and perhaps introduce the first changes to the text.

Hello everyone!

Disclaimer: The concepts of law (and examples) set forth in this post are based on educational materials freely accessible on the website of the Department of Legal Science "Cesare Beccaria" of 'University of Milan. Of course, any error or inaccuracy is attributable solely to me.